PA ABDUL-HAMID AINA & ORS v. CHIEF LAMIDI AMURE & ORS
(2014)LCN/7172(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of May, 2014
CA/L/346/2012
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
1. PA ABDUL-HAMID AINA
2. MR. MOJEED S. OLUWOLE
3. ALHAJI (CHIEF) SHAKIRU RAFIU (ARO OF ERA) For themselves and on behalf of Otunbi-Idewu Royal Family of Era Appellant(s)
AND
1. CHIEF LAMIDI AMURE
2. L.B. ERINLE
3. MATTHEW EGBEILE For themselves and on behalf of Egbeile Family of Era
4. H.R.M. OBA MOMODU ASHAFA
5. THE CHIEFTAINCY COMMITTEE OF OJO GOVERNMENT AREA
6. OJO LOCAL GOVERNMENT OF LAGOS STATE Respondent(s)
RATIO
WHETHER OR NOT AN APPEAL WHICH HAS BEEN WITHDRAWN WITH OR WITHOUT LEAVE OF COURT IS DEEMED DISMISSED
By order 11 Rule 5 of the court of Appeal Rules 2011, it says unequivocally that:
“An appeal which has been withdrawn under this order, whether with or without an order of the Court, shall be deemed to have been dismissed”
Therefore any withdrawal under this Rule amounts to a dismissal of the Appeal, by the clear and unambiguous words of this Rule of Court. PER PEMU, J.C.A.
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): The Appellants, as Claimants in the High Court of Justice, Lagos Judicial Division holden in Lagos, had instituted an action against the Respondents (as Defendants in the lower Court), vide Writ of Summons and Statement of Claim dated 4th of May 2006.
In paragraph 40 of the Statement of Claim, the Claimants claim the following reliefs viz:
(i) “A DECLARATION that the 1st to 3rd Defendants and/or their privies do not have the exclusive right to determine any issue of chieftaincy either by way of selection or nomination or appointment or by any other means, of any person as Regent or acting Baale or Baale of Era Town in Ojo Local Government Area of Lagos State or any chieftaincy title of the same species thereto without due consultation with and consent of the member of Claimants’ OTUNBI-IDEWU ROYAL FAMILY.”
(ii) “A DECLARATION THAT any such selection or nomination or appointment of any person as Regent or acting Baale of Baale or any chieftaincy title of the same species of Era Town made by the Defendants either jointly or severally without due consultation with and consent of the Claimants’ OTUNBA-IDEWU family is illegal therefore null, void and of no effect.”
(iii) “AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants whether by themselves or in conjunction with anyone from nominating or selecting or appointing or installing any person to the Regency of acting Baaleship or Baaleship or any chieftaincy title of the same species OF ERA Town, without due consultation and consent of the Claimants’ OTUNBA-IDEWU ROYAL FAMILY of ERA TOWN.”- Pages 3-10 of the Record of Appeal.
On the 17th of June 2008, the Appellants filed a motion for an order entering Judgment for the Claimants against all the Defendants as per the Statement of Claim dated 4th May 2006 – pages 59-62 of the Record of Appeal.
On the 4th of July 2011, the 1st – 3rd Defendants filed an application for leave to extend time, within which they may file an application to set aside the Defendants’ Judgment delivered in the suit on 2nd March 2010; extention of time within which to set aside the default Judgment, and for an order setting aside the said default Judgment – pages 67-70 of the Record of Appeal.
On the 9th of December 2011, the Appellants filed a motion on Notice seeking an order of Court striking out the 1st – 3rd Defendants/Respondents motion dated 4/7/2011, on the ground that the lower Court lacks the jurisdiction to entertain same – pages 80-81 of the Record of Appeal.
From records, notice of appeal was filed on the 17th of May 2010 against the Judgment of Adebajo J. contained in the Judgment delivered on the 2nd day of March 2010 – pages 82-87 of the Record of Appeal.
From Records, Notice of withdrawal of Appeal was filed on the 26th of December 2011 – page 95 of the Record of Appeal. This was after the Judgment had been delivered on the 2nd of March 2010, in an application by the Claimants for Judgment.
In the Judgment, the learned trial Judge granted the reliefs sought in the claim, in favour of the 1st- 3rd Respondents.
This decision is what the Appellants is appealing.
Pursuant to the Practice Direction of this Honourable Court, the Appellants filed a Notice of Appeal on the 23rd of March 2012 – pages 136 – 140 of the Record of Appeal. lt encapsulates five (5) Grounds of Appeal.
The Appellants filed their Brief of Argument on the 28th of May 2012. Same is settled by Chief Oludare Fasae. The 1st – 3rd Respondents filed their Brief of Argument on the 16th of April 2013 but same was deemed filed on the 1/11/2013. Same is settled by Olaotan Ajose-Adeogun.
The Appellants had proffered just one sole issue for determination. It is
“WHETHER, HAVING REGARD TO THE 1ST TO 3RD RESPONDENTS’ NOTICE OF APPEAL WHICH PREDATED
THEIR SAID MOTION ON NOTICE DATED 7/4/2011 AND THE SUBSEQUENT DISMISSAL OF THE SAID APPEAL BY THE HONOURABLE COURT OF APPEAL PURSUANT TO ORDER 17 RULE 5 OF THE COURT OF APPEAL RULES 2011, THE LEARNED LOWER COURT JUDGE WAS RIGHT TO HOLD THAT HE HAD JURISDICTION TO ENTERTAIN THE RESPONDENTS’ MOTION TO SET ASIDE THE SAME JUDGMENT.”
The 1st to 3rd Respondents also proffered one sole issue for determination. It is
“WHETHER HAVING REGARD TO THE 1ST TO 3RD RESPONDENTS’ NOTICE OF APPEAL WHICH PREDATED THEIR MOTION ON NOTICE DATED 7/4/2011 AND THE SUBSEQUENT DISMISSAL OF THE SAID APPEAL BY THIS HONOURABLE COURT OF APPEAL PURSUANT TO ORDER 11 RULE 5 OF THE COURT OF APPEAL RULES 20111, THE LEARNED LOWER COURT JUDGE WAS RIGHT TO HOLD THAT HE HAD JURISDICTION TO ENTERTAIN THE RESPONDENTS’ MOTION TO SET ASIDE THE SAME JUDGMENT.”
The 1st to 3rd Respondents sole issue for determination is without doubt an adoption of the Appellants’ sole issue for determination and I shall consider this appeal on this issue.
Without much ado, the answer to this sole issue is, in the affirmative. I shall now give reasons.
From records, the Appellants filed a Notice of Appeal on the 17th of May 2010 – pages 82 to 87 of the Record of Appeal.
A motion on notice for inter alia, leaves to extend time within which the 1st – 3rd Defendants/Applicants may file an application to set aside the default Judgment delivered in this suit, on 2nd March 2010, was filed on the 4th of July 2011, (and not 7/4/2011 as stated by parties to this appeal in their respective issues for determination).
A Notice of withdrawal of Appeal was filed on the 26th of December 2011.
The Ground of Appeal has to do with the default Judgment given by the lower Court on the 2nd day of March 2010.
As at the time the 1st to 3rd Respondents’ Appeal was still pending before the Court of Appeal, the Respondents filed a motion at the lower Court seeking an order of the Court to set aside the same Judgment.
It is pertinent to note that when the Appellants became aware of this, they filed a Notice of Preliminary Objection on the 9th of December 2011 – (pages 80-88 of the Record of Appeal) which challenged the jurisdiction of the lower Court to entertain the motion.
In Paragraph 2 of the affidavit in support of the Notice of Preliminary Objection, a copy of the Notice of Appeal filed was referred to as Exhibit “A”. Therefore the lower Court was notified of the pendency of a Notice of appeal in respect of the default Judgment.
However before the Notice of Preliminary Objection could be heard, the Respondents withdrew their appeal vide Notice of Withdrawal dated 19th of December 2011. This was brought to the Notice of the Appellants.
By order 11 Rule 5 of the court of Appeal Rules 2011, it says unequivocally that:
“An appeal which has been withdrawn under this order, whether with or without an order of the Court, shall be deemed to have been dismissed”
Therefore any withdrawal under this Rule amounts to a dismissal of the Appeal, by the clear and unambiguous words of this Rule of Court.
Having dismissed the Appeal, it means that the Judgment of the lower Court which was appealed subsists. And what is this Judgment in respect of? It is in respect of an order of Court vide Ruling dated 22nd of March 2012 – pages 134 – 135 of the Record of Appeal. In that Ruling, the lower Court presided over by O.H. Oshodi J. overruled the Preliminary Objection which is for an order striking out the 1st to 3rd Defendants/Respondents’ Motion dated 4th July 2011 on the ground that the lower Court lacks the Jurisdiction to entertain same.
The withdrawal of the Appeal against this decision, makes the order as to jurisdiction one that subsists. Therefore the lower Court was seised with jurisdiction to entertain the motion dated 4th July 2011, which sought among other things “leave to extend time within which the 1st – 3rd Defendants/Appellants may file an application to set aside the Default Judgment delivered in this suit on 2nd March 2010”.
The learned trial Judge was right to continue to entertain a motion seeking to set aside a Judgment.
The result is that the Appeal is bereft of merit and same is dismissed.
The Ruling of the lower Court presided over by Oshodi J. on the 22nd of March 2012 is hereby affirmed.
No order as to costs.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: My learned brother Rita Nosakhare Pemu, J.C.A., availed me the privilege to read in advance the judgment prepared by his Lordship with which I agree and adopt as my judgment in the appeal with nothing extra to add.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity of reading before now the lead judgment just delivered by my learned brother, R.N. Pemu J.C.A.
I agree with the reasoning and conclusion, reached therein that the appeal lacks merit.
I too order that the appeal be dismissed and I abide by the consequential orders made in the lead judgment.
Appearances
Chief O.O. Fasae Esq.For Appellant
AND
Ajose Adeogun Esq.
A. Adewunmi Esq.
B. Agbaje Esq. and
W. Fatai Esq.For Respondent
